AMERICA’S FIRST FREEDOM.ORG – December 24, 2020 – On October 26, 2020, the U.S. Senate confirmed Seventh Circuit Judge Amy Coney Barrett to the U.S. Supreme Court, making President Donald J. Trump’s nominee only the fifth woman U.S. Supreme Court justice. What happened during her confirmation hearings? What should Second Amendment advocates expect from her on the nation’s highest bench? And, how soon might we see the newly constituted Court take up a Second Amendment case?
During Barrett’s confirmation hearings, several Senate Democrats tried to paint her as a “Second Amendment extremist.” This was hardly surprising, since these senators have never met a gun-control law they thought was unconstitutional, and find any view to be “extreme” if it prevents them from enacting more gun-control measures, no matter how sweeping or restrictive.
Some senators tried to get Barrett to comment on whether she would find certain gun-control policies unconstitutional, but Barrett followed a longstanding tradition for nominees by refusing to opine on how she would rule in hypothetical future cases. She did explain, however, her judicial philosophy regarding the Second Amendment and pointed to her high-profile dissent in a Seventh Circuit case involving gun rights.
“I spent a lot of time in that opinion looking at the history of the Second Amendment, and looking at the Supreme Court’s cases, and so the way in which I would approach the review of gun regulation is in the same way, to look very carefully at the text, to look very carefully at what the original meaning was,” said Barrett.
In the end, the U.S. Senate confirmed Barrett by a vote of 52-48, and she became the 115th U.S. Supreme Court justice—a tremendous victory for originalism in general, and for Second Amendment advocates in particular.
While Justice Barrett rightly would not pre-judge Second Amendment cases not yet before her, we do have a fair bit of insight into how she would likely analyze them.
First, because Barrett is a committed originalist, her record shows that she will not attempt to arbitrarily “update” or “fix” the meaning of the Second Amendment in order to accommodate her own policy preferences, or to water down protections she does not personally think should exist; this is a common problem among judges who prefer, despite all the evidence, not to view the Second Amendment as an individual right.
As Barrett herself said during the confirmation hearings: “Judges can’t just wake up one day and say, ‘I have an agenda. I like guns. I hate guns.’ … and walk in like a royal queen and impose their will on the world.”
We also know that the one time Justice Barrett has analyzed a Second Amendment case—a dissent she wrote as a Seventh Circuit judge—she was true to those very principles.
That dissent, in Kanter v. Barr, provides important insight into Justice Barrett’s approach to Second Amendment cases. It is also an excellent example of originalism in action. The case involved a federal statute that effectively imposed a lifetime revocation on the petitioner’s right to keep and bear arms, based entirely on his previous conviction for a single count of mail fraud. [full article]